James Hardie directors lose final appeal

Lucy Battersby Governance

SEVEN former James Hardie directors have lost an appeal to scrap penalties and disqualifications, ending a marathon legal battle over the board's 2001 decision to release misleading information about a compensation fund for asbestos victims.

But the fine for former company secretary and general counsel James Shafron was increased from $50,000 to $75,000 and a seven-year ban as a company director was kept because he held key actuarial information about the fund.

The other directors - Meredith Hellicar, Michael Brown, Michael Gillfillan, Martin Koffel, Dan O'Brien, Greg Terry and Peter Willcox - had five-year bans reduced to three years and fines cut from $30,000 to $25,000, and to $20,000 for two US-based directors.

(Former chief executive Peter Macdonald was not part of the appeal. In 2009, he was banned for 15 years and fined $350,000 for his role in forming the foundation and publicising it.)

But Justice Reginald Barrett said all company directors should make sure their opinions were noted.

''Value is often attached to collegiate conduct leading to consensual decision-making, with a chair saying, after discussion of a particular proposal, 'I think we are all agreed on that', intending thereby to indicate that the proposal has been approved by the votes of all present,'' he said. ''Such practices are dangerous unless supplemented by appropriate formality.''

The case centred on the board's February 2001 decision to approve a statement to the sharemarket that James Hardie would transfer two former asbestos-producing subsidiaries into a new ''Medical Research Compensation Foundation''. The statement said this was ''fully funded'' to meet all asbestos claims - it ended up $1.5 billion short.

Public sentiment turned on what was seen as corporate bastardry. James Hardie had moved to the Netherlands, leaving a shrinking pot for asbestos disease victims.

ASIC launched legal action in February 2007 and in May this year the High Court confirmed the original Supreme Court ruling. The directors of James Hardie Industries were found to have breached their duty to act with care and diligence by approving the company's release of a misleading statement to the market.